https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2061

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E132 OF 2026** **RONALD KIPROTCH TONUI PETITIONER** *VERSUS* **MAURICE AKELO MISORI,** **SECRETARY GENERAL KUPPET 1ST RESPONDENT** **REGISTRAR OF TRADE UNIONS 2ND RESPONDENT** **KENYA UNION OF POST PRIMARY** **EDUCATION TEACHERS (KUPPET) 3RD RESPONDENT** **NATIONAL GOVERNING COUNCIL, KUPPET 4TH RESPONDENT** **COMMISSIONER FOR LABOUR 5TH RESPONDENT** **ATTORNEY GENERAL 6TH RESPONDENT** **RULING** The petitioner filed his application dated 27 April 2026 under the provisions of Rule 45 of the Employment and Labour Relations Court (Procedure) Rules and section 34(4) of the Labour Relations Act (LRA) and the Employment and Labour Relations (Trade Union Elections Disputes) Procedure and Practice Directions, seeking orders: 1. *Spent.* 2. *A conservatory order be issued staying/suspending the declaration of results and registration of the 1st respondent from the KUPPET National Elections held on 18 April 2026 pending the hearing and determination of this petition.* 3. *A conservatory order be issued restraining the 1st respondent from acting on or implementing the results of the 18 April 2026 election, pending the hearing and determination of the petition.* 4. *The court be pleased to compel the 1st respondent to include the applicant on the ballot for the position of secretary general and organise a fresh election for the said position.* 5. *Costs in the cause.* The petitioner filed his affidavit in support of his application and on the grounds that, on 18 April 2026, KUPPET held elections announced by a notice dated 9 March 2026. It thus formalised the electoral process. The petitioner avers that the 2nd respondent issued a circular in September 2025 directing trade unions to hold elections and provided guidelines under section 34(5) of the LRA. This included supplying the labour officers with a certified register of voters and a union constitution at least 60 days before the election date. The 1st respondent defied these directions. The petitioner issued notice of intention to vie for the position of KUPPET secretary general to the national governing council (NGC) under article 13.0(a) and attached a nomination fee payment slip. The 1st respondent rejected the petitioner's nomination without convening the NGC to receive the notification, as required by the constitution. Section 31 of the LRA provides that the Secretary General may be a person engaged or employed in the sector concerned. The petitioner avers that the 1st respondent was elected on 3 April 2021 for a term ending on 2 April 2026. *However, the petition was deregistered on 2 December 2021*. Article 8.2 of the union constitution only allows members of the national executive board (NEB) to contest national elections. The 1st respondent did not meet the requirements of the KUPPET constitution. He was not a member of NEB on the election date of 18 April 2026. His 5-year term had lapsed on 2 April 2026. The 1st respondent has already accepted that the officer's 5-year term had lapsed by the time the elections were held. He thus did not qualify for election as Secretary General. Article 13.0 of the union constitution provides for a 5-year term. Hence, the 1st respondent was not eligible for election. The 1st respondent is 63 years old and has reached the 60-year retirement age set by the Teachers Service Commission Regulation 161(1). The petitioner averts that the 3rd respondent has a Recognition Agreement with the TSC that permits its national officials to be seconded to the TSC. The 1st respondent does not fall under the unionisable employees of the TSC and, being 63 years old, is not eligible to be a member of the KUPPET. Standing for elections on 18 1pril 2026 was unlawful and invalid. The 1st respondent's act of clearing himself for election and rejecting the petitioner's notice of intention to stand for the position of Secretary General was discriminatory and unconstitutional. This contravenes section 34(2) of the Constitution and article 10(2) (b) on non-discrimination. The election rules are manipulated to favour certain persons, disenfranchise eligible candidates, and subvert the democratic mandate of KUPPET members. The orders sought should be issued. The 1st, 3rd, and 4th respondents filed the Replying Affidavit of Akelo Misori, the Secretary General, who avers that the petitioner's application is an abuse of court process and is meant to disregard the democratic elections of KUPPET officials. The elections of the 3rd respondent held on 18 April 2026 were conducted in compliance with the Union Constitution and the LRA. The elections were supervised by officers of the Labour Commissioner and thereafter registered by the 2nd respondent. The components made to the 2nd respondent were considered and dismissed. The petitioner has failed to disclose to the court that the 2nd respondent substantively considered and rejected his complaints as made herein. The 2nd respondent reviewed the union constitution and the LRA, found the complaints to be without merit, and thus registered the union officials. The respondents complied with the 2nd respondent notice dated 25 September 2025 in conducting their branch and national elections. The allegations that branch delegates were not validly elected are misleading and unsupported by evidence. The 2nd respondent confirmed that KUPPET had submitted a list of over 2,000 delegates from various branches under Article 8.2.0 of the constitution, and that no evidence was produced to challenge the petitioner's allegations. No such evidence on the branch elections has been filed in this petition. The KUPPET national elections were supervised by labour officers who verified the identity and eligibility of voters through registers, identification documents, pay slips, and the T-pay system and also utilised the indelible ink to ensure electoral integrity. The alleged bribery of voters is unsupported, speculative, and incapable of sustaining the serious constitutional and statutory reliefs sought; the application should be dismissed with costs. The parties attended and made oral submissions. The petitioner has filed his written submissions. **Determination** At this stage, the issue for determination is whether a conservatory order should be issued to stay or suspend the declaration of results and the registration of the 1st respondent following the KUPPET elections held on 18 April 2026. The second issue is whether the 1st respondent should be restrained from acting or implementing the results of the 18 April 2026 KUPPET election. And the third issue is whether the court should compel the 1st respondent to include the applicant on the ballot for the position of Secretary General, KUPPET and to organise a fresh election. The court takes notice that the KUPPET national elections were held on 18 April 2026 and returns were filed with the 2nd respondent. Hence, the question of whether to include the petitioner on the ballot paper and organise a fresh election is overtaken by events. Indeed, the 2nd respondent's circular to trade unions, dated 25 September 2025, directed that all branch elections be held by 31 March 2026 and that the national elections be held by 30 June 2026. Where the petitioner was thus not found eligible to run for national elections on the basis that the branch elections did not identify him as eligible to be a delegate, the orders sought seeking to reorganise the KUPPET national elections and to be added to the ballot paper cannot be issued. The petitioner has made a case that, under articles 13.0 and 12.0 of the KUPPET constitution, the elected official serves a 5-year term, which for the 1st respondent, elected as Secretary General on 3 April 2021, and lapsed on 2 April 2026. The petitioner also contends that the 1st respondent is 63 years old and, under the TSC Regulations, he is required to retire at 60 years of age. The circular of the 2nd respondent inviting trade unions to conduct elections is foundational to addressing trade unions' election disputes. Under the LRA, this office is required to direct and ensure that trade unions conduct elections. Also, under section 34 of the LRA, such elections must be conducted and regulated in accordance with each union constitution. The notice of the 2nd respondent thus allowed trade unions to conduct elections from the date of the notice until 30 June 2026. In the 2nd respondent notice dated 25 September 2025, clauses (2) and (3) directly address the term limits and further direct that the branch election be held from 5 January to 31 March 2026 and the national elections be held from 1 April to 30 June 2026. The 2nd respondent thus correctly issued lawful directions under the mandate bestowed on this office under the LRA. The 1st respondent thus remained lawfully in office based on the circular by the 2nd respondent and the mandate of such office calling for election up to 30 June 2026. On age limit, indeed, the petitioner relied on the provisions of section 34(5) of the LRA; he quoted these provisions verbatim as follows: ***(4) Notwithstanding the provisions of subsection (1)—*** ***(a) The general secretary of a trade union or the chief executive or association secretary of an employers’ organisation may be a person not engaged or employed in the sector concerned;*** Age is not a legal requirement for one to seek election as the Secretary General of a trade union. Although a teacher may retire at 60, a general secretary of a trade union may be from any sector, including teaching, or may be a teacher. The orders sought seeking conservatory orders fail to meet the threshold set out in [**Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/2174/eng%402015-09-22) and reiterated in **Munya v Kithinji & 2 others [2014] KESC 30 (KLR)****.** To issue the orders sought by the petitioner in the interim would not foster justice. The orders sought in the petition are identical to those sought in the Notice of Motion addressed above. The court shall invite the petitioner to address the court on the remaining issues in his petition. **Accordingly, the application dated 27 April 2026 is without merit and is hereby dismissed. The costs shall abide by the outcome of the petition.** **Delivered in open court this 16th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**